APRIL TERM, 1914.*

EICHKERN v. PARK BREWING CO.

NEGLIGENCE-HIGHWAYS-DRIVING IN PUBLIC WAY-INFANTS. Where the testimony, in a negligence case, tended to show that the decedent, a minor of about 7 years of age, attempted to climb upon the side of a loaded wagon driven by a servant of the defendant, that the conveyance was going rapidly, but the driver did not see the child trying to climb on the wagon and stopped the team as soon as he saw the deceased fall, that the team was going down hill and there was no evidence that he observed the dangerous proximity of decedent, the trial court properly directed a verdict for defendant.

Error to Houghton; O'Brien, J. Submitted April 30, 1914. (Docket No. 87.) (Docket No. 87.) Decided June 1, 1914.

Case by John J. Eichkern, as administrator of the estate of Olavi R. Wilhonen, deceased, against the Park Brewing Company for the negligent killing of deceased. Judgment for defendant on a directed verdict. Plaintiff brings error. Affirmed.

Burritt & Burritt, for appellant.

Rees, Robinson & Petermann, for appellee.

BROOKE, J. The plaintiff in this case, as administrator of the estate of Olavi Wilhonen, seeks to recover damages from the defendant growing out of the death of plaintiff's decedent, which it is alleged was caused by the negligence of the defendant.

* Continued from Vol. 180.

Plaintiff's decedent on the day of the accident was a lad seven years of age. He with two companions, one 10 and the other 9 years of age, were playing at the side of the highway known as the Quincy road leading into the city of Hancock. At the point where the accident occurred the highway is about 20 feet wide, and going into Hancock there is a very considerable grade, about 71⁄2 or 8 per cent. A servant of the defendant was driving his team hitched to a wagon filled with boxes down this hill, and when immediately opposite the point where the three children were playing, near an adjoining house, plaintiff's decedent ran out and attempted to climb upon the side of the wagon. He lost his footing, and the hind wheel of the wagon passed over his body.

Solomon Maki, one of the lads who was playing with plaintiff's decedent, after an examination by the court, was permitted to make his statement, although not sworn. He testified in part as follows:

"I was playing with Olavi and my little brother. Just we three playing together before he got hurt. We were playing, my brother and Olavi were playing cowboys and Indians. We were all playing inside the yard. We were playing in our yard. That is on the road where the teams go between our house and the road. I didn't live in the schoolhouse then. I lived across the street. Right across from the old schoolhouse, and we had a yard on the side of our house. It was in that yard I was playing with Olavi and my brother. We were about as far as the length of this room from the street. I saw the team coming. It was coming fast, about as fast as a horse goes on the road. About the usual way they go, the way they always go. That was the way it was coming. When I saw the team coming Olavi ran out to catch a ride and fell under the wheels and got hurt. That was while he was trying to catch on the wagon. That was the way it happened. There was one step on the side on the wagon, and he was trying to get on that step when he fell, and just as soon as he fell and got hurt then the wagon stopped. The wagon stopped as soon

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as the teamster could stop the wagon, and he got off the wagon and he picked Olavi up and stood him up; then Olavi walked in front of the schoolhouse. That would be about as far as that railing. He walked that far, then he got to the steps, and when he was on the steps he fell down. I told the men that Olavi tried to get a ride on the wagon. They asked me if I see the boy when he got run over. I said, Yes. Leo first spoke about his catching on to get a ride, Leo Ponka. He was trying to jump on the wagon. He didn't jump up high, and the wheel went right over. I saw it there when he tried to jump, and he jumped too low and he slipped. It was the hind wheel, the front wheel didn't touch him at all, only of the back wheels. The horses were going pretty fast. They were walking fast. At the time Olavi got hurt my brother John and Leo were there. My brother is dead."

Leo Ponka, the other boy who was present, testified in part as follows:

"I saw Olavi get hurt.

"Q. How did it happen, how did Olavi come to get hurt?

"A. With the wagon.

"Q. How? How did it happen?

"A. He jumped on the wagon to hang on the side there.

"Q. Where?

"A. On the side of the wagon.

"Q. And what did he do?

"A. He fell down, he fell down and hurt his knee right there.

"Q. What went over him; did anything run over him?

"A. Yes.

"Q. What?

"A. The horse and the wheel.

"Q. Which wheel was it?

"A. It was the back wheel.

"Q. The back wheel?

"A. Yes.

"Q. What was Olavi trying to do, or what was Olavi doing? What did Olavi do first?

"A. We were playing first.